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Flyniu Airlines Ltd v Faletau [2004] TongaLawRp 72; [2006] Tonga LR 1 (20 August 2004)

IN THE SUPREME COURT OF TONGA

Flyniu Airlines Ltd anor

v

Faletau anor

Supreme Court, Nuku'alofa
Webster CJ
CV 575/2004

20 August 2004

Practice and procedure – leave to apply for judicial review – granted

The plaintiffs who had been operating domestic airline services within the Kingdom since 16 June 2004 sought judicial review of a decision by the Minister for Civil Aviation to revoke the Foreign Air Operator's Certificate of the second plaintiff with effect from 16 August 2004. An interlocutory injunction was also sought to quash the revocation.

Held:

1. Sufficient interest was the first and foremost consideration in relation to an application for leave to apply for judicial review and that was a broad flexible concept. The applicant needed only to show that he had a prima facie or arguable case or reasonable grounds for believing that there had been a breach of a public duty. The court should not go into the matter in depth but should consider on a quick perusal of the material then available whether it disclosed what might on further consideration turn out to be an arguable case for the grant of the relief claimed. Leave to apply for judicial review was granted.

2. The test to be applied in determining whether or not to grant an interlocutory injunction in an application for judicial review was broadly similar to that applied in private law proceedings -- see American Cyanamid Co v Ethicon Ltd [1975] 1 All ER 504.

3. Leave to apply for judicial review was granted together with an injunction quashing the order of the Minister.

Cases considered:

American Cyanamid Co v Ethicon Ltd [1975] 1 All ER 504 (HL)

Attorney-General v Guardian Newspapers Ltd [1987] 3 All ER 316 (HL)

Cayne v Global Natural Resources plc [1984] 1 All ER 225 (CA)

IRC v National Federation of Self-Employed and Small Businesses Ltd [1981] 2 All ER 93 (HL)

Klissers Farmhouse Bakeries Ltd v Harvest Bakeries Ltd [1985] 2 NZLR 140 (CA)

Primary Produce Exports Ltd v Lauti 1995 TLR 162

Counsel for plaintiffs: Mr Edwards
Counsel for first defendants: Mr Havea
Counsel for second defendants: Mrs Taumoepeau

Ruling

The Plaintiffs, in particular the 2nd Plaintiff, have since 16 June 2004 been authorised to operate domestic airline services within the Kingdom of Tonga. This case concerns an application for judicial review by them in relation to matters surrounding the revocation on 13 August 2004 of the 2nd Plaintiff's Foreign Air Operator's Certificate [FAOC] by the Minister for Civil Aviation with effect from 16 August. The application was accompanied by lengthy affidavits with extensive productions in their annexes.